concurring in part and dissenting in part.
I concur with the Court’s determination that plaintiffs can maintain an action under N.J.S.A. 59:4-4 arising out of the Department of Transportation’s failure to warn of a hazardous road condition caused by negligent snow removal. However, I disagree with its. conclusion that a motorist cannot maintain a personal injury suit against a public entity arising out of an accident caused by the dangerous condition of public property after negligent snow removal.
In my opinion it is highly problematic that the common law immunity recognized in Miehl v. Darpino, 53 N.J. 49 (1968), was intended to apply in a case such as this, which involves conduct considerably more egregious than simply the discretionary decision to remove snow or merely negligent snow removal. Further, the Court compounds its error in interpret*418ing the common law immunity as applying to this case when it construes the Tort Claims Act as effectively codifying the Miehl immunity. In my view, there is no immunity, common law or statutory, that would bar this cause of action. Accordingly, I would rule that under the liability provisions of the Tort Claims Act, the wrongful conduct attributed to defendants would be actionable.
I.
My belief that the plaintiffs’ claims fall outside the intended scope of the Miehl immunity is based on the drastic differences in the facts of the two cases. The facts in this case are that on February 14,1983, three days after a major snowfall, the car in which plaintiff was a passenger ran head on into a snowbank that had been placed in the right southbound lane of Route 21 in Nutley, New Jersey. It is alleged that the accident was caused by the DOT’s “inadequate snow removal ... specifically, the partial plowing of a major roadway creating a snowbank ending the lane of traffic without warning and without regard to traffic circumstances.” Supra, at 402. Fairly read, plaintiffs’ complaint thus alleges that the cause of the accident was an extremely hazardous condition obstructing a state highway that would not have been apparent to a person exercising due care.
In contrast, the court in Miehl was concerned with a condition of public property following snow removal that was much more common and much less dangerous. The plaintiff in Miehl was a pedestrian who, after stepping through a narrow gap in a snowbank at an intersection, was struck by a car as he attempted to cross the street. The basis of his claim against the City of Hammonton was that the height of the snowbanks caused by snowplowing prevented him from getting back onto the sidewalk and out of the way of the oncoming car. Miehl, supra, 53 N.J. at 51. His claim was viewed by the Court as tenuous at best. The Court stated that in order to grant plaintiff relief, it *419would have to allow recovery whenever snow removal created a new element of danger in addition to the hazard caused by natural snow accumulation, implying that a municipality would have to dispense with all snow removal to avoid liability. Id. at 52. Concluding that some snow removal is better than none, the Court stated:
To require the individual members of the public to assume the relatively mild additional danger presented by accumulated piles of snow resulting from street snow removal is a minor sacrifice to exact when the alternative could be municipal failure to eliminate the far greater danger caused by permitting snow to remain as deposited by natural forces. [Id. at 54.]
The factual assumption underlying the Court’s reasoning in positing an immunity for snow removal activities in Miehl is that “[t]he unusual travelling conditions following a snowfall are obvious to the public.” Miehl, supra, 53 N.J. at 54. Under no stretch of the facts would the circumstances in Miehl be analogous to the conduct of public employees who created and left a mound of snow in the middle of a travelled highway, creating a treacherous hazard to motorists. The hazard created in this case is hardly a “relatively mild additional danger presented by accumulated piles of snow.” Id.
Moreover, the Court in Miehl cast its rule in terms of assumption of risk: “if travel is necessary [individuals should] accept the risks inherent at such a time[,]” id., thus reflecting its belief that the risk being immunized was one of which the plaintiff was or should have been aware. The plaintiffs here, however, contend that the harm was not apparent to a person exercising due care. Plaintiffs present a claim by a motorist that a governmental entity has a duty to warn if it is or should be aware of a hazardous road condition caused by snow removal that would not be reasonably apparent to, or anticipated by, a motorist exercising due care. This position is not inconsistent with Miehl. A month prior to the Miehl decision, the Court, in Bergen v. Koppenal, 52 N.J. 478 (1968), rendered a unanimous decision holding that “a duty may be found if a police officer learns of an emergency road condition which is likely not to be observed by a motorist and which holds an unusual risk of *420injury.” Id. at 480. In this case the plaintiffs posit “an emergency road condition” not readily observable, and unusually dangerous.
Furthermore, it cannot be overemphasized that the Court in Miehl intended to immunize conduct that not only does not add measurably to the risks naturally created by snow but also is intrinsically discretionary. The discretionary nature of a municipality’s decision as to what snow to remove, when to remove it, and how to remove it is more clearly expressed in the earlier snow removal case of Amelchenko v. Borough of Freehold, 42 N.J. 541 (1964). There the Court observed:
establishment of a general method of handling snowstorms is a matter of planning____ Such decisions cannot be subject to review in tort suits for damages, for this would take the ultimate decision-making away from those who are responsible politically for making decisions. [Id. at 550.]
It is significant that the Report of the Attorney General’s Task Force on Sovereign Immunity (1972), discusses Miehl and Amelchenko as government discretion cases, id. at 39-40, and the Comment to N.J.S.A. 59:2-3c cites Miehl and Amelchenko as examples of high level decisions protected by absolute immunity. Willis v. Department of Conservation and Economic Dev., 55 N.J. 534 (1970), the case in which the Court abrogated common law sovereign immunity, also discusses Amelchenko and Miehl as examples of governmental discretion. Id. at 540-41.
There is no suggestion in the allegations that the improper conduct on the part of DOT and its contractors involved “discretion,” “ultimate decision making” “a general method of handling snow storms” or “a matter of planning.” Amelchenko, 42 N.J. at 550. Contrary to the intimations of the majority, the Tort Claims Act has not abandoned the ministerial-discretionary distinction. In fact, the Act expressly recognizes and relies on the distinction. See N.J.S.A. 59:2-3d (“Nothing in this section [defining liability for discretionary activities] shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.”). *421Furthermore, the Act does not provide blanket immunity for all discretionary activities. N.J.S.A. 59:2—3d provides that a public entity can be held liable if its exercise of discretion in the allocation of existing resources to meet competing demands is found to be palpably unreasonable. While the reference to Miehl and Amelchenko in the Comments to N.J.S.A. 59:2-3c can fairly be read as preserving a public entity’s absolute immunity with regard to suits arising from its alleged failure to allocate adequate resources for snow removal activities, the Act evinces no intent to classify all snow removal activities as discretionary or to immunize any governmental activity that involves some degree of discretion. Thus, even if the Miehl immunity did survive the passage of the Tort Claims Act, and indeed, was intended to be statutorily codified, I do not think it extends to the facts of this case.
In my opinion, the conduct alleged here is so egregious as to call for liability under N.J.S.A. 59:4-2, imposing liability on governmental entities for injuries caused by the dangerous condition of public property. Taking plaintiffs allegations as true, the accident in this case was caused by the State or its agents creating an artificial wall of snow that abruptly closed off a lane of traffic on a major state highway. While public policy may be furthered by requiring motorists to assume the mild additional risk of unplowed or poorly plowed streets, the conduct alleged here is different in kind from the commonplace hazards of winter driving and snow removal. Indeed, if the obstruction had consisted of anything other than snow, there is little doubt that plaintiffs would be allowed to maintain their suit. See Hartman v. City of Brigantine, 42 N.J.Super. 247, 253 (App.Div.1956) (wife of motorist killed when his car rammed a mound of dirt left in the road allowed to maintain suit against municipality), aff’d, 23 N.J. 530 (1957). I see no reason why plaintiffs’ right to recover should depend solely on the composition of the obstruction.
*422II.
Furthermore, if the common law immunity of Miehl is otherwise applicable, it remains subject to judicial modification or partial abrogation, taking into account the particular tortious conduct in this case. While there is little question that the Miehl immunity survived the enactment of the Tort Claims Act in some form, it does not follow that N.J.S.A. 59:2-1 has codified or frozen the immunity.
The Tort Claims Act does not expressly incorporate existing immunities. Instead, the Comment to N.J.S.A. 59:2-l(b) merely acknowledges that the Act continued the existence of such immunities. We have long recognized the inherent mutability of common law immunities and have not hesitated to abandon or restrict them when as a matter of sound public policy they have outlived their usefulness. See, e.g., Weinberg v. Dinger, 106 N.J. 469 (1987); Foldi v. Jeffries, 93 N.J. 533 (1983); France v. A.P.A. Trans. Corp., 56 N.J. 500 (1970); Willis v. Department of Conservation & Economic Dev., supra, 55 N.J. 534; Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29 (1958). We have similarly recognized the mutability of common law immunities even when they have been included as common law doctrines in statutory enactments. For example, the Court construed the Married Persons’ Act, N.J.S.A. 37:2-1 to -30, as incorporating the common law, which then recognized spousal immunity. The Court reasoned, however, that “the statute did not incorporate immunity, but rather the common law with its inherent capacity for change.” Immer v. Risko, 56 N.J. 482, 487 (1970). Similarly, in Renz v. Penn Central Corp., 87 N.J. 437 (1981), the Court found that the specific adoption of a contributory negligence bar in the railroad immunity act was intended to incorporate the common law doctrine of contributory negligence. N.J.S.A. 48:12-152. Accordingly, it construed the statute as permitting the application of comparative negligence as a matter of common law evolution, which was totally consistent with notions of public policy as evidenced by *423the Legislature’s separate adoption of comparative negligence. See Renz, supra, 87 N.J. at 449.
The Tort Claims Act itself contemplates judicial development of the common law immunities it recognizes. The Comment to N.J.S.A. 59:2-l(b) provides “it is anticipated that the Courts will realistically interpret both statutory and common law immunities to effectuate their intended scope.” Furthermore, the Comment to the public property liability section, N.J.S.A. 59:4— 1, while citing to Miehl and Amelchenko, states that “[i]t is anticipated that this section will be developed to the extent possible in accordance with common law principles of landowner liability.” Most telling of all is the Comment to the Act’s general liability provision, N.J.S.A. 59:2-2, which observes that “[wjhile the general approach of this act is immunity unless liability, this section provides a flexible liability provision which will permit the courts to adapt the principles established in this act to the particular circumstances of the cases coming before them.” This is consistent with the course the Court took in Willis v. Department of Conservation & Economic Development, supra, 55 N.J. 534, when it abrogated common law immunity for the State, since the Court there was persuaded to take the action it did in part by the fact that lower courts had been successful in developing common law immunities to protect governments in particular situations. Willis, supra, 55 N.J. at 539-40. Finally, the Court in Willis anticipated such judicial action, noting “[i]t may well be that the subject so defies precise statement that inevitably the controlling concepts must be deireloped case by case even if the legislature does speak.” Id. at 539.
Thus, the common law immunities that survived the enactment of the Tort Claims Act remain subject to judicial modification, and it would be a mistake to infer a legislative intent to freeze the development of this common law creation. To the extent there are aspects of underlying conduct that as a matter of sound public policy demand some continuing protection, there is no reason why these concerns cannot be accommodated *424without necessarily retaining the immunity in its most expansive and absolute form. Thus, the modification or abrogation of immunity may incorporate protective conditions. See, e.g., Weinberg v. Dinger, supra, 106 N.J. 469 (abrogating immunity of private water companies for fire losses due to inadequate water pressure but refusing to allow subrogation claims brought by fire insurance companies). Further, it does not follow that if an immunity is to be modified or partially abrogated, the underlying duty of care must" be equated with negligence. Indeed, if that standard of care is deemed insufficiently protective, it may be heightened to strike a fair balance between the interests of the actor and the victim. The Court in Foldi v. Jeffries, supra, 93 N.J. 533, for.example, partially abrogated parental immunity. In doing so it did not permit liability for parental misconduct that was only negligent; it determined that the duty of care to be imposed would be to refrain from “wanton misconduct.” Id. at 550.
In this case, if the discretionary determinations relating to snow removal in any respect justify protections even regarding the alleged creation of an unusually dangerous hazard, there is no reason that the Court, as a matter of common law, could not apply an enhanced standard of care, taking into account the legitimate interests of government in encouraging snow removal. Indeed, the “palpably unreasonable” standard of care, if applied in snow removal cases, would mirror the standard adopted by the Legislature under the Act to prescribe the duty owed by public officials, and would be entirely consistent with the intent of the Legislature when it enacted the Tort Claims Act. Accord Renz v. Penn Central Corp., supra, 87 N.J. at 459.
As the majority recognizes, however, plaintiffs can maintain their suit against the Department of Transportation even absent such judicial development, since the Legislature has explicitly provided for liability in cases such as this under N.J.S.A. 59:4-4. According to the Comment to this section, a government entity may be liable if it fails to provide a warning “when *425a condition exists constituting a ‘trap’ to a person using a street or highway with due care.” As it has been judicially interpreted, N.J.S.A. 59:4-4 requires that the government entity have actual or constructive knowledge of an emergent condition in the road itself that would not be reasonably apparent to a person exercising due care. The provision extends only to emergent conditions; it does not extend to permanent conditions of the road itself, since this would conflict with the immunity provided for failure to provide ordinary traffic signals, N.J.S.A. 59:4-5, and, perhaps, the general immunity for plan or design of public property, N.J.S.A. 59:4-6. See, e.g., Kolitch v. Lindedahl, 193 N.J.Super. 540, 546 (App.Div.1984) (no liability for failure to warn of approaching blind curve since N.J.S.A. 59:4-4 is inapplicable to ordinary, continuing traffic conditions), rev’d on other grounds, 100 N.J. 485 (1985); Aebi v. Monmouth County Highway Dep’t, 148 N.J.Super. 430 (App. Div.1977) (no liability for failing to post sign warning of sudden narrowing of road at a bridge). Furthermore, it is limited to actual road conditions. In Johnson v. Township of Southampton, 157 N.J.Super. 518 (App.Div.), certif. denied, 77 N.J. 485 (1978), recovery was denied to a motorcyclist whose view of an intersection was obscured by vegetation on the side of the road. In rejecting plaintiff’s argument that under N.J.S.A. 59:4-4 the Township should have posted a sign warning of the intersection, the court stated:
There is no allegation made by plaintiffs that the roads in question were obstructed or that the right-of-way contained a dangerous condition. The limited ability to make observations on either side of the road caused by trees and vegetation simply served as a warning that due care must be maintained. The road conditions which presented themselves to the plaintiff passenger and his operator did not constitute a “trap.”
[Johnson, supra, 157 N.J.Super. at 523.]
The facts of this case fall squarely within the narrow set of facts anticipated by N.J.S.A. 59:4-4. While plaintiffs would have to establish knowledge on the part of the State of the dangerous condition, the fact that the State or its agents created the hazard provides a basis for a finding that the State *426had constructive knowledge of the location of the snowbank. Furthermore, it is apparent that a huge mound of snow is an emergent condition rather than a permanent characteristic of the road, and it must be assumed in the context of a motion for summary judgment that the snowbank was obstructing the right of way. Thus, provided that constructive knowledge of the snowbank can be attributed to the State, and the snow mound was in fact in the southbound lane of Rt. 21, plaintiffs should be allowed to recover if they can establish that the snowbank was not reasonably apparent to a person exercising due care, and that the State’s failure to post a sign warning of the hazardous condition was palpably unreasonable.
The significance of N.J.S.A. 59:4-4 in the context of this case is that it imposes a duty on a governmental entity to warn of a hazardous condition whether or not the government entity was negligent in creating or failing to remedy the dangerous condition. In Bergen v. Koppenal, supra, 52 N.J. at 480, the common law predecessor of N.J.S.A. 59:4-4, this Court noted that a municipality had a duty to warn of a road condition that is likely not to be observed by a motorist and presents an unusual risk of injury even if the municipality was not responsible for creating the dangerous condition. Accord McGowan v. Borough of Eatontown, 151 N.J.Super. 440 (App.Div.1977) (finding potential liability under N.J.S.A. 59:4-4). Even assuming that the Court is as a matter of law correct in holding that under Miehl a governmental entity is not negligent under N.J.S.A. 59:4-2 for creating a hazardous condition in a public highway in the course of snow removal activities, this does not relieve a government entity of its independent statutory duty under N.J.S.A. 59:4-4 to warn of dangerous emergent conditions of a public highway regardless of how such conditions occurred.
III.
Throughout its opinion, the Court expresses its concern that permitting suits such as plaintiffs’ would pose a question of *427fact, thus potentially allowing any plaintiff injured by a snow-related condition to survive a motion for summary judgment, thus subjecting governmental entities to the expense of defending a prohibitive number of cases on the merits. I believe such concerns are exaggerated.
First, to the extent that plaintiffs’ action would proceed under N.J.S.A. 59:4-4, as the Comment to that section illustrates, the statute contemplates only accidents involving the use of a street or highway. Therefore, pedestrian-on-public-property slip-and-fall cases, such as Amelchenko v. Freehold Borough, supra, 42 N.J. 541, would not come within the scope of N.J.S.A. 59:4-4. Furthermore, as interpreted by Johnson, supra, 157 N.J.Super. 518, N.J.S.A. 59:4-4 imposes liability only where a condition of the roadway itself caused the accident. Piles of snow merely obscuring the view of an intersection, see Paternoster v. N.J. Dep’t of Transp., 190 N.J.Super. 11 (App.Div.) (imposing liability for failing to lower snowbanks obscuring the view of an intersection), certif. denied, 96 N.J. 258 (1983), would not give rise to liability under N.J.S.A. 59:4-4.
In addition, in many cases, it should be possible to resolve on summary judgment whether or not the hazard was reasonably apparent or should have been anticipated by a person exercising due care. The factual predicate for the immunities established in Amelchenko and Miehl was that the conditions at issue in those cases were such that the plaintiffs should have anticipated the hazard that caused the injury. Thus, in Amelchenko the Court denied recovery to a pedestrian who slipped and fell in an unplowed municipal parking lot, noting that “there are certain risks inherent in the presence of snow on a public way which are obvious to pedestrians and which naturally put them on guard[,]” Amelchenko, supra, 42 N.J. at 551; and in Miehl the Court concluded that persons traveling after a snowstorm assume the normal risks of incomplete snow removal, since “[t]he unusual traveling conditions following a snowfall are obvious to the public.” Miehl, supra, 53 N.J. at 54.
*428If some hazards are so obvious that this Court has, in effect, been willing to conclude that the plaintiffs have assumed the risk involved, it would appear that there are some conditions about which reasonable minds would not differ as to whether or not they were obvious to a motorist exercising due care. Furthermore, in many cases, the fact that plaintiff observed or was aware of the hazard will be disclosed in the pleadings, as it was in Amelchenko and Miehl. In cases such as this, defendants should not have to bear the burden of defending their conduct at trial. Cf. Foldi v. Jeffries, supra, 93 N.J. at 85 (granting summary judgment to parents in cases where conduct alleged did not constitute willful and wanton misconduct). Hence, there is no persuasive basis for concluding that summary judgment will not be an effective procedure in disposing of litigation in this area.
There may be cases where the plaintiffs’ pleadings and pre-summary judgment discovery do not resolve the question of whether plaintiff actually saw, or should have seen, the hazard. The reasonableness of the failure to anticipate such a hazard will thus be a question for the finder of fact. Two cases that the Appellate Division has allowed to go to a jury under this theory are Meta v. Township of Cherry Hill, 152 N.J.Super. 228 (App.Div.), certif. denied, 75 N.J. 587 (1977), in which water flowing onto a roadway had frozen and formed an isolated icy patch, and McGowan v. Borough of Eatontown, supra, 151 N.J.Super. 440 in which water flowing down a driveway formed an isolated ice patch on a state highway. Even in those cases, while plaintiff might survive a motion for summary judgment, he will still have the burden of proving that a reasonable person would not have seen the snow or ice patch or, given the temperature and the recent weather conditions, would not have reasonably anticipated that there would be ice on the road. Once the plaintiff overcomes that hurdle, he would still be faced with establishing that a governmental entity knew or should have known of the hazard (it should be noted that in both Meta and McGowan the defendant municipalities conceded they were *429aware of the hazards). Then and only then is the governmental entity’s failure to post a warning sign scrutinized. Even at this stage, a governmental entity is protected from excessive liability by the very high threshold established by the “palpably unreasonable” standard.
Furthermore, to the extent that liability is predicated on the provisions of N.J.S.A. 59:4-2 concerning the condition of public property, it must be remembered that the common law immunities recognized in Amelchenko and Miehl are still in effect and available as a means of resolving the typical snow-related accident claim. Unless the facts as alleged involve hazards different in kind from those discussed by the Court in such cases, lower courts would be justified in grating a governmental entity summary judgment. In effect, the scope of a governmental entity’s immunity from liability for snow removal activities would be subject to judicial refinement over time to address the facts presented by particular cases. This, however, is the essence of a common law immunity. See Willis v. Department of Conservation & Economic Dev., supra, 55 N.J. at 539.
Finally, the floodgate argument itself is more shadow than substance. It was raised when this Court removed interspousal immunity as a defense in automobile accidents in Immer v. Risko, supra, 56 N.J. at 490, and raised again when we expanded Immer to include almost all interspousal torts in Merenoff v. Merenoff, 76 N.J. 535, 552-53 (1978). In neither case did the predicted floodtide of litigation result. More recently we were unpersuaded by this threat in determining to abrogate the immunity of water utilities for the negligent failure to maintain water pressure. Weinberg v. Dinger, supra, 106 N.J. at 493. As this Court has observed in the past, “[i]t is, after all, the business of our courts to deal with such problems and we ought not assume that the task is too onerous without some basis in experience for the assumption.” Immer, supra, 56 N.J. at 494. See also People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 254 (1985) (“The answer to the allegation of unchecked liability is not the judicial obstruction of a fairly *430grounded claim for redress.”). Therefore, we should have “confidence in the resilience and versatility of our courts to address the dangers of fraud and collusion, in either their most virulent forms or in their less noxious guises of simple pettiness or overreaching.” Merenoff, 76 N.J. at 556. In light of the narrow scope of liability provided by N.J.S.A. 59:4-4, and N.J.S.A. 59:4-2, the unlikelihood of the average snow-related accident giving rise to such a suit, and the ability of the judicial system to cope with frivolous claims, the floodgate argument advanced by the Court is unpersuasive.
IV.
The Tort Claims Act itself suggests the way in which this area of the law should be allowed to develop, anticipating that governmental entities’ liability for the condition of its property would evolve in accordance with common law principles of landowner liability. See Comment to N.J.S.A. 59:4-2. In light of this, I feel that on the facts of this case the Miehl immunity does not apply, and N.J.S.A. 59:4-2 imposes liability on a public entity for injury caused by a condition of its property, subject to a “palpably unreasonable” standard. Moreover, by its own terms N.J.S.A. 59:4-4 imposes similar liability for failure to provide emergency signs necessary to warn of a dangerous condition that would not have been reasonably apparent to a person exercising due care. Thus, both the common law and the Tort Claims Act provide for liability under the facts alleged by plaintiffs, and the trial court erred in granting defendant’s motion for summary judgment. Therefore, I concur in the result reached by the Court only to the extent that it recognizes plaintiffs’ right to maintain suit pursuant to N.J.S.A. 59:4-4.
Chief Justice WILENTZ joins in this opinion.